from the whose-side-are-they-on? dept

The European Patent Organization (EPO) is a strange entity. Despite its name, it has nothing to do with the European Union. Instead, it was set up on the basis of the 1973 European Patent Convention to grant patents under that Convention.

As an independent body whose only reason for existing is to oversee the issue of patents, it has a natural tendency to widen their reach. One of the most hotly-contested areas where that is happening is software patents, which are not granted in Europe "as such" (you can imagine what fun the lawyers have with those two words).

British company Plant Biosciences was granted a European patent (EP1069819) for a method for the production of plants whereby the level of a potentially anticarcinogenic substance in broccoli plants can be increased.

French company Limagrain and Swiss group Syngenta filed notices of opposition to the patent in 2003 and maintained their challenge in subsequent appeals. They allege, among other things, that the patent protects an essentially biological method of breeding plants excluded from patentability under the European Patent Convention (EPC) binding on the EPO. The technical board of appeal hearing the two appeals stayed the proceedings and referred questions to the Enlarged Board of Appeal (EBA) with a view to obtaining clarification of the term "essentially biological processes for the production of plants (or animals)" and the associated exception to patentability.

The issue here is that the original patent was issued for plants produced by ordinary, "biological" methods, and those are excluded from patentability. Where things get strange is when Plant Biosciences withdrew part of its claim:

the patentee has proposed to limit its original patent by excluding the breeding methods.

You might think that would be the end of the patent, but no such luck. Here's what the EPO writes in the sentence following the one above (and note our old friend "as such"):

Thus, only the broccoli plants as such remain protected.

This is truly crazy. The "patentee" has withdrawn any claim to a patent on the breeding method -- because, as the two companies objecting pointed out, such biological methods are excluded from patentability. And yet Plant Biosciences still seems to be claiming the result of those unpatentable biological methods, which is essentially what every farmer has obtained since the dawn of agriculture through cross-breeding.

Sadly, it seems likely that the revised claim will be accepted, because the appeal against the patent has been cancelled:

The two firms appealing the patent made their request for a public hearing conditional on whether the board decides not to follow the proposal of the patentee. Therefore, the board will now issue its reasoned decision in writing.

Untangling the logic there, what this means is that the two companies objecting to the patent asked for a public hearing only if the EPO did not accept Plant Biosciences' proposal to limit the patent to the result, not the process. The EPO has accepted that proposal, and so no public hearing will be held, and it therefore seems likely that the modified patent will be accepted. In this way, the EPO will have set a precedent for allowing patents on the result of ordinary biological breeding – and succeeded in extending its patent empire just a little further.

Ruth Tippe from the No Patents on Life! Initiative said that further patents with claims on bread, flour and noodles (EP1331845) and cucumber (EP1433378) are also due to be granted. "The EPO is about to grant further patents very soon," she said. "For example, on 2 November a patent will be granted to Bayer claiming cucumber derived from conventional breeding."

Indeed, given the extremely low bar for patentability that the EPO is setting here, it seems almost inevitable that there will be a mad rush to patent vast swathes of the vegetable kingdom before anyone else does.

What's worrying about this is not just the fact that all kinds of key foodstuffs produced by conventional breeding may end up patented, but the complete lack of any sensible logic from the EPO in allowing them. It emphasizes once again the unaccountability of an independent organization whose chief priority is granting patents, rather than seeking to serve the public interest -- as one subject to democratic checks might be.

Taken together with the EPO's continual weakening of the ban on software's patentability, this latest episode suggests that it is time to bring the EPO to heel, and to make it accountable to the European people whose name it bears.